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Mentally incompetent in Immigration Court?

In a precedent decision issued today, the BIA found that neither the government nor the respondent bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge (IJ) should determine if a preponderance of the evidence establishes that the respondent is competent. Further, the BIA held that an IJ’s finding of competency is a finding of fact that the BIA can review to determine if it is clearly erroneous.

Sometimes the US is not the land of the free

Politico reports that newly released government records show that, from mid-July 2014 through August 31, 2015, immigration judges issued nearly 2,800 removal orders for child migrants from Central America who were afforded no defense lawyer and only a single hearing. In at least 40 percent of those cases, the defendant was 16 years old or younger, and at least 392 children were 14 or younger. The article quotes AILA

Immigration Judge harassed you?

  1. In a published decision the BIA remanded the record to the immigration court for a new hearing before a different Immigration Judge (IJ), finding that conduct by an IJ that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different IJ. The BIA also held that the requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

Immigration Judges hard at work

A recent Transactional Records Access Clearing House (TRAC) report found that Immigration Judges completed 198,105 cases during FY2015, up 7.3% from 184,597 in FY2014. The data indicated that this marks the first time in six years that immigration court case closings have risen rather than fallen, halting a downward slide that had been observed since FY2009.

Get Representation in Asylum Hearings as Court just ruled against Applicant

The Ninth Circuit held that the REAL ID Act permits the Board of Immigration Appeals (BIA) and Immigration Judges (IJs) to base their adverse credibility determinations exclusively on background evidence in the record, upon consideration of the totality of the circumstances and all relevant factors. As such, the court upheld the BIA’s denial of the petitioner’s asylum claims, finding that the BIA and the IJ’s adverse credibility determination, which was based solely on a report from Amnesty International, was supported by substantial evidence.

Be careful with your statements in different proceedings

In a precedent decision issued, the Board of Immigration Appeals (BIA) held that, in making an adverse credibility determination, an Immigration Judge (IJ) can consider significant similarities between statements submitted by different applicants in different proceedings, as long as the IJ gives the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.

IJ MUST give asylum applicants notice of Biometric appointment

In a precedent decision, the Board of Immigration Appeals (BIA) found that Immigration Judges (IJs) must notify asylum applicants of the biometrics requirements, the deadline for complying with the requirements, and the consequences of noncompliance. The BIA also held that neither IJs nor the BIA has jurisdiction to consider whether asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program.

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